HOPE for Homeowners Program: Program Regulations, 58418-58426 [E8-23612]
Download as PDF
58418
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
BOARD OF DIRECTORS OF THE HOPE
FOR HOMEOWNERS PROGRAM
24 CFR Part 4001
[Docket No. B–2009–F–01]
RIN 2580–AA00
HOPE for Homeowners Program:
Program Regulations
Board of Directors of the HOPE
for Homeowners Program.
ACTION: Final rule.
AGENCY:
mstockstill on PROD1PC66 with RULES3
SUMMARY: This final rule sets forth the
core requirements for the HOPE for
Homeowners Program that have been
established by the Board of Directors
(Board) of the HOPE for Homeowners
Program (Program). A new section 257
of the National Housing Act (NHA)
provides the authority for this Program
and oversight requirements to be
performed by the Board. Specifically,
section 257(c)(1) of the NHA requires
the Board to prescribe such regulations
as may be necessary or appropriate to
implement the Program. The Board has
determined that the regulations set forth
in this rule are necessary and
appropriate for the implementation and
effective administration of the Program.
DATES: Effective Date: October 6, 2008.
FOR FURTHER INFORMATION CONTACT:
Emmanuel Yeow, Secretary of the Board
of Directors of the HOPE for
Homeowners Program, Department of
Housing and Urban Development, 451
7th Street, SW., Room 9110,
Washington, DC 20410–8000, telephone
202–708–3600 (this is not a toll-free
number). Persons with hearing- or
speech-impairments may access this
number through TTY by calling the tollfree Federal Information Relay Service
at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
The HOPE for Homeowners Act of
2008, located in Title IV of division A
of the Housing and Economic Recovery
Act of 2008 (HERA), (Pub. L. 110–289,
122 Stat. 2654, approved July 30, 2008),
amended Title II of the NHA to add a
new section 257. New section 257 (12
U.S.C. 1701z–22) establishes within the
Federal Housing Administration (FHA),
the Program, a temporary FHA program,
that offers homeowners and existing
mortgage loan holders (or servicers
acting on their behalf) insurance on the
refinancing of loans for distressed
mortgagors to support long term
sustainable homeownership, including
among other things, allowing
homeowners to avoid foreclosure.
Section 257 of the NHA authorizes the
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
Department of Housing and Urban
Development (HUD) acting through the
FHA to insure such refinanced eligible
mortgages commencing no earlier than
October 1, 2008, and such authority
expires September 30, 2011.
Under the Program, new mortgages
are offered by FHA-approved
mortgagees to mortgagors who are at risk
of losing their homes to foreclosure. The
new FHA-insured mortgage refinances
the borrower’s existing mortgage at a
significant write-down. Eligible
borrowers must be unable to afford their
existing mortgage payments, must
occupy the residence that is the security
for the refinanced mortgage as their
primary residence, and may not have
any present ownership interest in
another residence. Investors and
investor properties are not eligible for
the FHA-insured refinanced mortgages.
Under the Program, participating
mortgagors share their new equity and
future appreciation with FHA.
Additionally, participation in this
Program is voluntary. No mortgagees,
servicers, or investors are compelled to
participate.
Section 257 of the NHA prohibits the
new mortgage loan insured by FHA
from exceeding 90 percent of the
appraised value of the property that is
security for the mortgage, or 132 percent
of the dollar amount limitation in effect
for 2007 under section 305(a)(2) of the
Federal Home Loan Mortgage
Corporation Act (12 U.S.C. 1454(a)(2))
for a property of applicable size. In
addition, section 257 also provides that
the term of the FHA-insured refinanced
mortgage shall have a maturity of not
less than 30 years, and must bear a
single rate of interest that is fixed for the
entire term of the mortgage. Section 257
directs that a mortgagor participating in
the Program may not grant a new
subordinate lien on the mortgaged
property during the first 5 years of the
term of the mortgage insured under the
Program, except as the Board may
determine is necessary to ensure the
maintenance of property standards, and
subject to the requirements that any new
outstanding liens (1) do not reduce the
value of FHA’s equity in the mortgagor’s
home; and (2) when combined with the
mortgagor’s existing mortgage
indebtedness, do not exceed 95 percent
of the home’s appraised value at the
time of the new subordinate lien.
The fundamental principle behind the
HOPE for Homeowners Act and this
Program is that providing new equity for
distressed homeowners may be an
effective way to help homeowners avoid
foreclosures.
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
This Final Rule
Section 257(c)(1) of the NHA requires
the Board to establish requirements and
standards for the Program, and prescribe
such regulations and provide such
guidance as may be necessary or
appropriate to implement such
requirements and standards.1 In
addition to this broad direction to
establish requirements and standards for
the Program, section 257 also outlines
specific areas for which the Board is
charged with establishing standards and
policies for the Program.
This final rule provides the core
requirements that the Board has
determined are necessary and
appropriate for the implementation and
effective administration of the Program.
Consistent with section 257 of the NHA,
however, the Board may establish
standards and policies through means
other than codified regulations. More
detailed provisions implementing these
core requirements may be issued by the
Board or FHA through orders, a Federal
Register notice, or through FHA
mortgagee letters (or similar
administrative issuances). Because this
is a temporary program designed to
address the immediate needs of
homeowners faced with the looming
threat of foreclosure, the regulations
adopted by the Board are limited to the
basic requirements of the Program. The
Board’s objective is to adopt regulations
that address the core features of the
Program, include necessary safety
measures to avoid fraud, waste, and
abuse, and leave FHA with sufficient
flexibility to issue such guidance or
processing requirements to make this a
Program that is able effectively to assist
distressed homeowners avoid
foreclosure.
The regulations in this part present
the purpose, the authority delegated to
FHA, and reference to FHA
requirements that are applicable to the
Program.2 The regulations define the
1 The Board is composed of the Secretary of HUD,
the Secretary of Treasury, the Chairman of the
Board of Governors of the Federal Reserve System,
and the Chairperson of the Board of Directors of the
Federal Deposit Insurance Corporation, or their
respective designees. Section 257(t) of the NHA also
provides that the Board may ‘‘prescribe, amend, and
repeal such bylaws as may be necessary for carrying
out the functions of the Board.’’ Consistent with
this provision, the Board adopted bylaws regarding
its organization, staffing, and operational
procedures. These bylaws were published in the
Federal Register on September 4, 2008 (73 FR
51621) and provide that the Board’s principal place
of business is 451 7th Street, SW., Washington, DC
20410–0500.
2 Section 4(b) of the Department of Housing and
Urban Development Act, 42 U.S.C. 3533(b),
provides that the Federal Housing Commissioner
shall head a Federal Housing Administration within
HUD and shall have such duties and powers as may
E:\FR\FM\06OCR3.SGM
06OCR3
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
mstockstill on PROD1PC66 with RULES3
key Program terms, and address the
following Program areas: underwriting
standards, representations of the
mortgagee whose mortgagor will
participate in the Program, mortgagor
representations, certain prohibitions
imposed on FHA, FHA equity sharing
with the borrower, FHA appreciation
sharing with the borrower, the
prohibition on subordinate liens during
the first five years of the mortgagor’s
Program mortgage, and applicable
hearing procedures. The Board has
determined that regulations addressing
these areas are necessary for immediate
implementation and long-term
administration of the Program.
The payment to FHA of the equity
created in the property as a result of the
refinancing of the eligible mortgage is
designed to avoid any windfall to
mortgagors that would arise as the result
of the refinancing. The same windfall
avoidance concept also applies to the
requirement that property appreciation
be shared between the homeowner and
FHA, the latter which is authorized to
share any appreciation funds with
subordinate mortgage holders.
Section 257(e)(4)(B) requires that, at a
minimum, the Board take into
consideration three factors in
determining the amount of appreciation
a subordinate mortgage lien holder may
receive. The first factor is the status or
relative priority of the subordinate liens.
This factor is addressed in the payout
allocation set forth in the rule. After sale
or disposition of the property, HUD’s 50
percent appreciation interest is paid to
prior mortgage lien holders in order of
the seniority in which their mortgage
liens were held, to the extent of HUD’s
share. Mortgage lien holders that were
in 2nd position behind the 1st mortgage
will be paid first, then 3rd mortgage lien
holders, and when the claims of all
prior lien holders have been satisfied,
HUD will retain the balance, if any.
The second factor is the outstanding
principal and accrued but unpaid
interest of the existing senior mortgage
and subordinate mortgages. Since the
total balances may not accurately reflect
the amount the mortgagee potentially
could recover in a foreclosure, the Board
determined that these balances should
be compared to the appraised value of
the property. Therefore, this factor is
expressed in the matrix described below
as a cumulative combined loan-to-value
(CLTV).
be prescribed by the Secretary of HUD. The
Secretary of HUD has delegated to the FHA
Commissioner the power and authority to carry out
all FHA mortgage insurance programs, including
authority to issue rules or regulations to carry out
these programs.
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
The third factor is the extent to which
the principal and accrued interest owed
on the mortgages that are senior to the
particular subordinate mortgage exceed
the property’s current appraised value.
This factor is taken into account as well
in the matrix for appreciation sharing
because the amount a subordinate
mortgage holder may receive is based in
part on the amount of principal and
interest, calculated at the pre-default
contract rate, owed on those mortgages
that are more senior than the
subordinate mortgage in question.
The Board gave very careful
consideration to these three factors by
examining several models developed to
implement this authority. The initial
models were very intricate and concern
was raised that adopting any of them
would cause confusion in the mortgage
marketplace, and discourage
subordinate mortgage holders and
servicers from participating in the
program. The Board also considered the
potential for the existing senior
mortgage holder, who will receive
proceeds from the refinancing that are
likely to exceed the holder’s potential
recovery in a foreclosure, to compensate
a subordinate mortgage holder to
participate in the Program. The Board
encourages lenders to pursue such
arrangements.
The following matrix provides the
mechanism for determining the future
appreciation payment a subordinate lien
holder is eligible to receive. The Board
considers a number of benefits to be
present with this approach. It provides
an incentive to action by subordinate
lien holders; reduces administrative
costs; is simple to calculate and easy to
understand; and voids competing
appraisals.
58419
In establishing the maximum
payments allowable to a subordinate
mortgage holder, the Board took into
account information received from
market participants concerning the price
received in the market currently for
delinquent subordinate mortgages. The
Board expects that the majority of
subordinate mortgages offered to the
Program will be delinquent. The
information provided by market
participants indicates that delinquent
subordinate mortgages currently trade at
substantially below their par values,
with market values within the ranges
established by the Board. Moreover, the
information provided suggests that
subordinate mortgages that are even 30
days delinquent are very likely to
default and yield no recovery value to
the holder of the subordinate mortgage.
Indeed, it is common practice for
holders to write-down the value of
delinquent subordinate mortgages in
portfolios and in securitized pools to
zero once the loans are 180 days past
due.
In establishing the maximum amounts
that a subordinate mortgage holder may
receive through receipt of an interest in
the future appreciation of the property,
the Board also took into consideration
that subordinate mortgage holders
receiving compensation in the form of
future appreciation rights, may require
additional compensation to participate
in the Program to reflect the time value
of money and uncertainty about the
extent and timing of property
appreciation. A certificate entitling the
holder to receive a portion of future
appreciation on a property may be
worth little or nothing if the property
experiences little or no appreciation.
Moreover, appreciation rights are
exercised upon sale or other disposition
of the property, the timing of which is
APPRECIATION SHARING PAYOUT
determined by the homeowner, rather
MATRIX
than the claim holder. As a result, if
homeowners that have a mortgage
Percent of un- insured under the Program sell quickly,
paid principal
appreciation rights will have less value.
and interest
Subordinate lien holder
that lien holder Since homeowners participating in the
Program have an incentive to sell the
is eligible to
receive*
property to escape the shared
appreciation requirement, claim holders
Cumulative CLTV >135% .....
9% may discount the value of shared
Cumulative CLTV ≤135% .....
12% appreciation rights. Accounting for
* Appreciation payment to a subordinate lien these factors is inherently imprecise;
holder will depend on actual appreciation at nonetheless, using models based in part
the time of sale of the property and will be lim- on option-pricing concepts, the Board
ited by the amount of future appreciation HUD
receives. Payment will be made according to believes that providing the holder of a
the subordinate lien holder’s position of priority subordinate mortgage the right to
in relation to the property at the time the Pro- receive a maximum of 9 to 12 percent
gram mortgage is originated, and will be of the unpaid principal and interest on
based upon principal and interest on the date
of origination of the Program mortgage, cal- the subordinate mortgage out of the
culated at the pre-default contract rate of future appreciation, if any, on the
interest.
property should likely provide the
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
E:\FR\FM\06OCR3.SGM
06OCR3
58420
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
holder about the same risk-adjusted
compensation as the holder would
receive from a current cash payment
equal to the approximate current market
value of a delinquent subordinate lien of
the same amount and CLTV.
Findings and Certifications
Administrative Procedure Act
This final rule is being issued and
will become effective without a public
comment period. Section 553(a) of the
Administrative Procedure Act (5 U.S.C.
551 et seq.) (APA) provides that advance
notice and public comment procedures
do not apply to a matter relating to
agency management or personnel or to
public property, loans, grants, benefits
or contracts (see 5 U.S.C. 553(a)). This
final rule establishes regulations for a
new mortgage insurance program under
the supervision of the Board and is
therefore exempt from notice and
comment rulemaking as provided in 5
U.S.C. 553(a).
This final rule will become effective
upon publication in the Federal
Register. Section 553(d) of the APA
provides that substantive rules, such as
this rule, shall be made effective not less
than 30 days after publication unless,
among other things, an agency finds
good cause to provide an earlier
effective date. Good cause exists for
these regulations to be immediately
effective. This is a voluntary and
temporary program designed to address
the immediate needs of homeowners
facing foreclosure, and HERA provides
for this Program to begin October 1,
2008, in order that homeowners can
take advantage of the mortgage relief
offered by this Program. The immediate
effective date of this rule is consistent
with the statutory authority. The
objective for expedient action by the
Board to have this Program commence
at the beginning of the new Federal
fiscal year is motivated by the high level
of at-risk borrowers and weak
conditions in the housing market.
mstockstill on PROD1PC66 with RULES3
Executive Order 12866, Regulatory
Planning and Review
The Office of Management and Budget
(OMB) reviewed this rule under
Executive Order 12866, Regulatory
Planning and Review. OMB determined
that this rule is an economically
significant regulatory action as defined
in section 3(f) of the Order. Accordingly,
an economic analysis was prepared for
this rule.
This Program has the potential to
have significant economic benefits. The
major unknown is participation. If
10,000 participate in the Program, the
aggregate net benefit of the Program may
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
exceed $100M. It is possible that there
will be more participants than 10,000,
or less, in which case the net benefits
increase or decrease, as the case may be.
There are other factors important in
determining the aggregate impact on the
economy. The net benefit to the lender
was estimated to be $10,000 but, as the
economic analysis discusses, it may be
higher. A higher net benefit to the senior
lien holder would increase the expected
benefit of preventing a foreclosure.
There are also economic benefits to the
community from preventing foreclosure.
HUD anticipates that the net economic
benefits will exceed the costs based on
initial analysis.
The docket file for this rule, which
includes the economic analysis, is
available for public inspection in the
Regulations Division, Office of General
Counsel, Department of Housing and
Urban Development, 451 7th Street,
SW., Room 10276, Washington, DC
20410–0500. Due to security measures
at the HUD Headquarters building, an
advance appointment to review the
public comments must be scheduled by
calling the Regulations Division at 202–
402–3055 (this is not a toll-free
number). Individuals with speech or
hearing impairments may access this
number via TTY by calling the Federal
Information Relay Service at (800) 877–
8339.
Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has federalism
implications if the rule either imposes
substantial direct compliance costs on
state and local governments and is not
required by statute, or the rule preempts
state law, unless the agency meets the
consultation and funding requirements
of section 6 of the Executive Order. This
rule does not have federalism
implications and does not impose
substantial direct compliance costs on
state and local governments nor
preempts state law within the meaning
of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531–
1538) (UMRA) establishes requirements
for federal agencies to assess the effects
of their regulatory actions on state,
local, and tribal governments and the
private sector. This rule will not impose
any federal mandates on any state, local,
or tribal governments or the private
sector within the meaning of UMRA.
Congressional Review Act
OMB has determined that this rule
constitutes a ‘‘major rule’’ as defined in
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
the Congressional Review Act (CRA) (5
U.S.C. 801 et seq.). Generally, a major
rule under the CRA has a 60-day
delayed effective date and is required to
be submitted to Congress in accordance
with the requirements of the CRA.
Section 808 of the CRA allows a rule to
become effective sooner than otherwise
provided by the CRA, if the agency, for
good cause, finds that notice and public
procedure are impracticable,
unnecessary, or contrary to the public
interest. This finding and a brief
statement of the reasons for the finding
must be incorporated in the rule. (See 5
U.S.C. 808(2)). As stated in this
preamble under the section that
addresses APA requirements, this rule is
exempt from the notice and comment
procedures of the APA. As also
discussed in connection with the APA
requirements, this Program is a
voluntary and temporary measure
designed to prevent eligible borrowers
whose mortgages are at risk of
foreclosure from losing their homes.
Some of these borrowers are facing
foreclosure now or may in the very near
future, making the need for
implementation of the Program
immediate. A 60-day delay in the
effective date of this rule would
therefore be contrary to the public
interest. Thus, good cause exists to
make this rule effective as close as
possible to October 1, 2008, which is the
date on which the HERA provides for
the Program to begin. The Board will
submit this rule and other required
information to Congress as required by
the CRA.
List of Subjects in 24 CFR Part 4001
Administrative procedures, Practice
and procedure, Mortgage insurance,
Reporting and recordkeeping
requirements.
■ For the reasons set forth in the
preamble, the Board of Directors of the
Hope for Homeowners Program
establishes a new Chapter XXIV
consisting of part 4001 in Title 24 of the
Code of Federal Regulations to read as
follows:
CHAPTER XXIV—BOARD OF DIRECTORS
OF THE HOPE FOR HOMEOWNERS
PROGRAM
PART 4001—HOPE FOR
HOMEOWNERS PROGRAM
Subpart A—HOPE for Homeowners
Program—General Requirements
Sec
4001.01 Purpose of program.
4001.03 Requirements and delegated
authority.
4001.05 Approval of mortgagees.
4001.07 Definitions.
E:\FR\FM\06OCR3.SGM
06OCR3
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
Subpart B—Eligibility Requirements and
Underwriting Procedures
4001.102 Cross-reference.
4001.104 Eligible mortgages.
4001.106 Eligible mortgagors.
4001.108 Eligible properties.
4001.110 Underwriting.
4001.112 Income verification.
4001.114 Appraisal.
4001.116 Representations and prohibitions.
4001.118 Equity sharing.
4001.120 Appreciation sharing.
4001.122 Fees and closing costs.
Subpart C—Rights and Obligations under
the Contract of Insurance
4001.201 Cross-reference.
4001.203 Calculation of upfront and annual
mortgage insurance premiums for
Program mortgages.
Subpart D—Servicing responsibilities
4001.301 Cross-reference.
4001.303 Prohibition on subordinate liens
during first five years.
Subpart E—Enforcement
Mortgagor False Information
4001.401 Notice of false information from
mortgagor-procedure.
Appraiser Independence
4001.403 Prohibitions on interested parties
in insured mortgage transaction.
Mortgagees
4001.405 Mortgagees.
Appendix A to Part 4001—Calculation of
Future Appreciation Payment.
Authority: 12 U.S.C. 1701z–22.
Subpart A—HOPE for Homeowners
Program—General Requirements
§ 4001.01
Purpose of program.
The HOPE for Homeowners Program
is a temporary program authorized by
section 257 of the National Housing Act,
established within the Federal Housing
Administration (FHA) of the
Department of Housing and Urban
Development (HUD) that offers
homeowners and existing loan holders
(or servicers acting on their behalf) FHA
insurance on refinanced loans for
distressed borrowers to support longterm sustainable homeownership by,
among other things, allowing
homeowners to avoid foreclosure. The
HOPE for Homeowners Program is
administered by HUD through FHA.
§ 4001.05
mstockstill on PROD1PC66 with RULES3
§ 4001.03 Requirements and delegated
authority.
(a) Core requirements. This subpart
establishes the core requirements for the
HOPE for Homeowners Program that
have been adopted by the Board of
Directors (Board) for the HOPE for
Homeowners Program (Program). In
addition to the core requirements,
codified in this subpart, the Board of
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
Directors may adopt and issue
additional requirements, standards and
policies through non-codified
regulations, including through order,
Federal Register notice, or other
statement, such as a mortgagee letter, to
be issued and implemented by FHA.
(b) Basic Program parameters. (1)
FHA is authorized to insure eligible
refinanced mortgages under the Program
commencing no earlier than October 1,
2008. The authority to insure additional
mortgages under the Program expires
September 30, 2011.
(2) Under this Program, an eligible
mortgagor may obtain a refinancing of
his or her existing mortgage(s) with a
new mortgage loan insured by FHA,
subject to conditions and restrictions
specified in section 257 of the National
Housing Act and requirements
established by the Board.
(c) Delegated authority. HUD is
statutorily charged with administering,
through FHA, the Program. In carrying
out the Program requirements
established by the Board, FHA is
directed to issue such interim guidance
and mortgagee letters as FHA
determines necessary or appropriate,
within the parameters of the
requirements, standards and policies
adopted by the Board. In addition to
FHA’s statutory charge, the Board of
Directors authorizes FHA to address
unique or case-by-case situations as may
be encountered by FHA in carrying out
the Program, and to take such action as
may be necessary to implement the
Board’s requirements. This delegated
implementing authority includes, but is
not limited to, specifying application
forms, mortgage application procedures,
certifications or other assurances, and
other information collection
requirements, subject to such rules,
standards and policies as the Board may
adopt.
(d) Other applicable requirements.
Except as may be otherwise provided by
the Board, the provisions and
requirements in the FHA regulations in
24 CFR part 203, which are generally
applicable to all FHA-insured single
family mortgage insurance programs,
also apply with respect to the insurance
of a refinanced eligible mortgage under
the Program.
Approval of mortgagees.
(a) Eligibility. In order for a mortgage
to be eligible for insurance under this
part, the mortgagee originating the
mortgage loan and seeking mortgage
insurance under this part shall have
been approved by the Secretary
pursuant to 24 CFR part 202.
(b) Mortgagee whose loan is to be
refinanced. A mortgagee holding or
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
58421
servicing an eligible mortgage to be
refinanced and insured under section
257 of the National Housing Act is not
required to be an approved mortgagee as
required in paragraph (a) of this section,
unless it seeks to be the originator of the
refinanced mortgage to be insured by
FHA.
§ 4001.07
Definitions.
As used in this part and in the
Program, the following definitions
apply.
Act means the National Housing Act
(12 U.S.C. 1701 et seq. ).
Allowable closing costs mean charges,
fees and discounts that the mortgagee
may collect from the mortgagor as
provided in 24 CFR 203.27(a).
Board means the Board of Directors
for the HOPE for Homeowners Program,
which is comprised of the Secretary of
HUD, the Secretary of the Treasury, the
Chairman of the Board of Governors of
the Federal Reserve System (Federal
Reserve Board), and the Chairperson of
the Board of Directors of the Federal
Deposit Insurance Corporation or the
designees of each such individual.
Capital improvements means a repair,
renovation, or addition to a property
that significantly enhances the value of
the property, but does not include
expenses for interior decor, landscape
maintenance, or normal maintenance or
replacement expenses.
Contract of insurance means the
agreement by which FHA provides
mortgage insurance to a mortgagee.
Default and delinquency fees means
late charges contained in a mortgage/
security instrument for the late or nonreceipt of payments from mortgagors
after the date upon which payment is
due, including charges imposed by the
mortgagee for the return of payments on
the mortgage due to non-sufficient
funds.
Direct financial benefit, as used in
section 257(e)(1)(A)(ii)(II) of the Act,
consists of the greater of two factors:
(1) The amount of initial equity the
mortgagor has in the property at the
closing for the Program mortgage as
determined under § 4001.118; and
(2) The total amount that the existing
senior mortgage and all existing
subordinate mortgages on the property
have been written down.
Disposition means any transaction
that results in whole or partial transfer
of title of a property other than—
(1) A sale of the property; or
(2) Any transaction or transfer
specified in 12 U.S.C. § 1701j-3(d)(1)
through (8).
Eligible Mortgage means a mortgage as
defined in § 4001.104.
Existing senior mortgage means an
eligible mortgage that has superior
E:\FR\FM\06OCR3.SGM
06OCR3
mstockstill on PROD1PC66 with RULES3
58422
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
priority and is being refinanced by a
mortgage insured under section 257 of
the Act.
Existing subordinate mortgage means
a mortgage that is subordinate in
priority to an eligible mortgage which is
being refinanced by a mortgage insured
under section 257 of the Act.
FHA means the Federal Housing
Administration.
HOPE for Homeowners Program (or
Program) means the program
established under section 257 of the
Act.
HUD means the Department of
Housing and Urban Development.
Intentionally defaulted for purposes
of section 257(e)(1)(A) of the Act means
the mortgagor:
(1) Knowingly failed to make payment
on the mortgage or debt;
(2) Had available funds at the time
payment on the mortgage or debt was
due that could pay the mortgage or debt
without undue hardship; and
(3) The debt was not subject to a bona
fide dispute.
Mortgage has the same meaning as
provided in 24 CFR 203.17(a)(1).
Mortgagee has the same meaning as
provided in 24 CFR 203.251(f).
Mortgagor has the same meaning as
provided in 24 CFR 203.251(e).
Premium pricing means the price for
the sale of a mortgage loan with an
above market rate of interest.
Prepayment penalties mean such
amounts as defined in 12 CFR
226.32(d)(6) of the Federal Reserve
Board’s Regulation Z (Truth in
Lending).
Primary residence means the dwelling
where the mortgagor maintains his or
her permanent place of abode and
typically spends the majority of the
calendar year. A mortgagor can only
have one primary residence.
Program mortgage means the
mortgage into which the existing senior
mortgage is refinanced.
Secretary means the Secretary of
Housing and Urban Development.
Total monthly mortgage payment
means the sum of:
(1) Principal and interest, as
determined on a fully indexed and fully
amortized basis; and
(2) Escrowed amounts. (i) The
monthly required amount collected by
or on behalf of the mortgagee for real
estate taxes, premiums for required
hazard and mortgage insurance,
homeowners’ association dues, ground
rent, special assessments, water and
sewer charges and other similar charges
required by the note or security
instrument; or
(ii) For mortgages not subject to
escrow deposits, 1⁄12 of the estimated
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
annual costs for items listed in
paragraph (2)(i) of this definition.
Subpart B—Eligibility Requirements
and Underwriting Procedures
§ 4001.102
Cross-reference.
(a) All of the provisions of 24 CFR
part 203, subpart A, concerning
eligibility requirements of mortgages
covering one-family dwellings under
section 203 of the National Housing Act
(12 U.S.C. 1709) apply to mortgages on
one-family dwellings to be insured
under section 257 of the National
Housing Act (12 U.S.C. 1701z–22),
except the following provisions: 203.7
Commitment Process; 203.10 Informed
consumer choice for prospective FHA
mortgagors; 203.12 Mortgage insurance
on proposed or new subdivisions;
203.14 Builder’s warranty; 203.16
Certificate and contract regarding use of
dwelling for transient or hotel purposes;
203.18 Maximum mortgage amounts;
203.18a Solar-energy system; 203.18b
Increased mortgage amount; 203.18c
One-time or up-front MIP excluded from
limitations on maximum mortgage
amounts; 203.18d Minimum principal
loan amount; 203.19 Mortgagor’s
minimum investment; 203.20 Agreed
interest rate; 203.29 Eligible mortgage in
Alaska, Guam, Hawaii or the Virgin
Islands; 203.32 Mortgage lien; 203.37a
Sale of property; 203.42 Rental
properties; 203.43 Eligibility of
miscellaneous types of mortgages;
203.43a Eligibility of mortgages covering
housing in certain neighborhoods;
203.43d Eligibility of mortgages in
certain communities; 203.43e Eligibility
of mortgages covering houses in
federally impacted areas; 203.43g
Eligibility of mortgages in certain
communities; 203.43h Eligibility of
mortgages on Indian land insured
pursuant to section 248 of the National
Housing Act; 203.43i Eligibility of
mortgages on Hawaiian Home Lands
insured pursuant to section 247 of the
National Housing Act; 203.43j Eligibility
of mortgages on Allegany Reservation of
Seneca Nation Indians; 203.44
Eligibility of advances; 203.45 Eligibility
of graduated payment mortgages; 203.47
Eligibility of growing equity mortgages;
203.49 Eligibility of adjustable rate
mortgages; 203.50 Eligibility of
rehabilitation loans; 203.51
Applicability; and 203.200–203.209
Insured Ten-Year Protection Plans
(Plan).
(b) For the purposes of this subpart,
all references in 24 CFR part 203,
subpart A, to section 203 of the Act
shall be construed to refer to section 257
of the Act. Any references in 24 CFR
part 203, subpart A, to the ‘‘Mutual
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
Mortgage Insurance Fund’’ shall be
deemed to be to the Home Ownership
Preservation Entity Fund, and any
references to ‘‘the Commissioner’’ shall
be deemed to be to the Board or the
Commissioner (as the context may
require).
(c) If there is any conflict in the
application of any requirement of 24
CFR part 203, subpart A, to this part the
provisions of this part shall control.
§ 4001.104
Eligible mortgages.
A mortgage eligible to be refinanced
under section 257 of the Act must:
(a) Have been originated on or before
January 1, 2008;
(b) Be secured by a property owned
and occupied by the mortgagor as his or
her primary residence, and be the only
residence in which the mortgagor has
any present ownership interest; and
(c) Meet such other requirements as
the Board may adopt.
§ 4001.106
Eligible mortgagors.
In order for a mortgagor to be eligible
to refinance his or her existing
mortgages under section 257 of the Act,
the mortgagor must:
(a) Have had, on March 1, 2008, a
monthly total mortgage payment of
more than 31 percent of the mortgagor’s
monthly gross income;
(b) Not have an ownership interest in
any other residential property;
(c) Not have been convicted of fraud
under federal or state law in the past 10
years;
(d) Certify that the mortgagor has not
intentionally defaulted on any mortgage
or debt and has not knowingly, or
willfully and with actual knowledge,
furnished material information know to
be false for purposes of obtaining any
Program mortgage; and
(e) Meet such other requirements as
the Board may adopt.
§ 4001.108
Eligible properties.
(a) A mortgage may be insured under
the Program only if the property that is
to be the security for the mortgage is a
one-family residence.
(b) The following property types are
eligible to secure a mortgage insured
under the Program:
(1) Detached and semi-detached
dwellings;
(2) A condominium unit;
(3) A cooperative unit; or
(4) A manufactured home that is
permanently affixed to realty and is
treated as realty under applicable state
law except state taxation law.
§ 4001.110
Underwriting.
A mortgage may be insured under the
Program only if the following conditions
are met:
E:\FR\FM\06OCR3.SGM
06OCR3
mstockstill on PROD1PC66 with RULES3
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
(a) Debt-to-income thresholds. Except
as provided in paragraph (c) of this
section:
(1) Payment-to-income. The total
monthly mortgage payment of the
mortgagor under the Program mortgage
does not exceed 31 percent of the
mortgagor’s monthly gross income; and
(2) Debt-to-income. The sum of the
total monthly mortgage payment under
the Program mortgage and all monthly
recurring expenses of the mortgagor
does not exceed 43 percent of the
mortgagor’s monthly gross income.
(b) Past credit performance. The
mortgagor must have made at least six
full payments on the existing senior
mortgage being refinanced under the
Program.
(c) Trial modifications. For any
mortgagor who is unable to meet the
requirements of paragraph (a) of this
section, a mortgage loan may
nevertheless be presented for insurance
by FHA under the Program if:
(1) The mortgagor, using existing
income, has made full and timely
mortgage payments on the existing
senior mortgage pursuant to the terms of
the trial modification:
(i) For the three consecutive months
before submission of the application for
the mortgage to be insured under the
Program; and
(ii) In an amount that is at least 90
percent of the estimated total monthly
mortgage payment to be paid by the
mortgagor on the Program mortgage.
(2) The total monthly mortgage
payment of the mortgagor under the
Program mortgage does not exceed 38
percent of the mortgagor’s monthly
income; and
(3) The sum of the total monthly
mortgage payment under the Program
mortgage and all monthly recurring
expenses of the mortgagor does not
exceed 50 percent of the mortgagor’s
monthly gross income.
(d) Non-occupant co-borrowers. A
mortgage loan may be insured by the
FHA under the Program, even if one of
the mortgagors on the loan (i.e. , a cosigner) does not reside at the residence
securing the loan, provided that the
non-resident mortgagor relinquishes all
interests in the property that is to be
security for the mortgage before an
application is submitted for FHA
insurance under the Program.
(e) Amount of new mortgage payment.
The mortgagor’s total monthly payment
on the mortgage to be insured under the
Program must not be greater than the
mortgagor’s aggregate total monthly
mortgage payment under the
mortgagor’s existing senior mortgage
and all existing subordinate mortgages.
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
(f) Limit on origination fees.
Mortgagees may charge and collect from
mortgagors allowable closing costs.
§ 4001.112
Income verification.
The mortgagee shall use FHA’s
procedures to verify the mortgagor’s
income and shall comply with the
following additional requirements:
(a) The mortgagee shall document and
verify the income of the mortgagor by
obtaining a transcript of the borrower’s
Federal income tax returns or a copy of
the borrower’s Federal income tax
returns obtained directly from the
Internal Revenue Service for the most
recent two years; and
(b) The mortgagee shall document and
verify the mortgagor’s income in any
case in which the mortgagor has not
filed a Federal income tax return.
§ 4001.114
Appraisal.
(a) The property shall be appraised by
an appraiser on the FHA Appraiser
Roster.
(b) An appraisal of a property to be
security for a Program mortgage shall be
conducted in accordance with Uniform
Standards of Professional Appraisal
Practice (USPAP) but dated no more
than 90 days from the date on which the
mortgage transaction is closed, except as
otherwise provided by the Board.
(c) The mortgagee must inform the
appraiser that copies of the appraisal
may be shared with holders and
servicers of existing subordinate
mortgages.
§ 4001.116 Representations and
prohibitions.
(a) Underwriting and appraisal
standards. In order for the Program
mortgage to be eligible for insurance
under the Program, the underwriter and
the mortgagee must provide
certifications, in a format approved by
the FHA, that the mortgage is in
compliance with the underwriting and
the appraisal standards set forth in this
part, and that it meets all requirements
applicable to the Program. FHA may
require additional certifications by the
mortgagee to ensure compliance with
such additional standards as the FHA
deems necessary given the specific
mortgage transaction presented.
(b) Mortgagor’s liability for
repayment. (1) The mortgagor shall
provide a certification to FHA that the
mortgagor has not:
(i) Intentionally defaulted on the
mortgagor’s existing mortgage(s), or any
other debt; or
(ii) Knowingly or willfully and with
actual knowledge furnished material
information known to be false for the
purpose of obtaining the mortgagor’s
existing mortgage(s).
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
58423
(2) The mortgagor shall provide any
other certifications that FHA may
otherwise require.
(3) A mortgagor obligated under a
Program mortgage shall agree in writing,
on a form approved by the Board, to be
liable to pay to FHA any Direct
Financial Benefit achieved from the
reduction of indebtedness on the
existing senior and subordinate
mortgages that are being refinanced
under the Program if he or she makes a
false statement or other
misrepresentation in the certifications
and documentation required for
Program eligibility, including but not
limited to the certifications required
under section 257(e)(1)(A)(i) of the Act.
(c) Mortgagee in violation of Program
requirements. (1) If the mortgagee holds
a Program mortgage that it originated
and/or underwrote, and FHA finds that
the mortgagee violated the Program
requirements, FHA is prohibited from
paying FHA insurance benefits to that
mortgagee.
(2) If the mortgagee no longer holds
the Program mortgage that it originated
and/or underwrote, FHA will pay the
insurance claim to the mortgagee
presently holding the Program mortgage
(if all other requirements of the contract
for mortgage insurance are met and the
present holder did not participate in the
violation of Program requirements) and
shall seek indemnification from the
non-holding mortgagee.
(d) FHA insurance. A mortgage is
eligible for insurance if the mortgagee
submits a complete case binder within
120 days from the date of closing of the
mortgage, or such other time as the
Board may prescribe. The binder shall
include evidence acceptable to the
Board that the mortgage is current.
(e) Mortgagor failure to make first
mortgage payment. FHA shall not pay a
mortgage insurance claim to any
mortgagee if the first total monthly
mortgage payment is not made within
the time frame established in paragraph
(d) of this section. The mortgagee shall
not, directly or indirectly, make all or a
part of the first total monthly mortgage
payment on behalf of the mortgagor. The
mortgagee is prohibited from escrowing
funds at closing for all or part of the first
total monthly mortgage payment.
§ 4001.118
Equity sharing.
(a) Initial Equity. For purposes of
section 257(k)(1) of the Act, the initial
equity created as a direct result of the
origination of a Program mortgage on a
property, as calculated by the Program
mortgage lender, shall equal:
(1) The appraised value of the
property that was used at the time of
origination of the Program mortgage to
E:\FR\FM\06OCR3.SGM
06OCR3
58424
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
underwrite the mortgage and to
determine compliance with the
maximum loan-to-value ratio at
origination established by section
257(e)(2)(B) of the Act; less
(2) The original principal amount of
the Program mortgage on the property.
(b) FHA’s interest. Upon the sale or
disposition of a property or Program
mortgage refinancing, FHA shall
calculate and be entitled to receive the
portion of the initial equity (as defined
by paragraph (a) of this section) set forth
in section 257(k)(1) of the Act, subject
to such standards and policies as the
Board may establish.
mstockstill on PROD1PC66 with RULES3
§ 4001.120
Appreciation sharing.
(a) Calculation of appreciation. For
purposes of section 257(k)(2) of the Act,
the amount of the appreciation in value
of a property securing a Program
mortgage that occurs between the date
the mortgage was insured under section
257 of the Act and the date of any
subsequent sale or disposition of the
property shall be equal to the following,
as such amounts of appreciation may be
established to the satisfaction of FHA:
(1) The gross proceeds from the sale
or disposition of the property
(calculated at the pre-default rate of
interest); less
(2) The amount of closing costs, as
adopted by the Board, incurred by the
mortgagor(s) in connection with such
sale or disposition, if any; less
(3) Seventy-five percent, as may be
modified by the Board, of the actual
expenditures for Capital Improvements
made by the mortgagor(s) after the date
of origination of the Program mortgage;
and less
(4) The appraised value of the
property that was used at the time of
origination of the Program mortgage to
underwrite that mortgage and determine
compliance with the maximum loan-tovalue ratio at origination established by
section 257(e)(2)(B) of the Act.
(b) HUD’s interest in appreciation.
Upon sale or disposition of a property
securing a Program mortgage, FHA shall
be entitled to receive an amount equal
to 50 percent of the appreciation in
value of the property calculated in
accordance with paragraph (a) of this
section.
(c) Eligibility of subordinate mortgage
holders to receive a portion of
appreciation in value. The persons or
entities that hold, on the date of
origination of a Program mortgage, an
existing subordinate mortgage on the
property shall be eligible to receive a
portion of FHA’s interest in the
appreciation in value of the property, as
determined in accordance with the
provisions of this section and such
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
additional standards and policies that
the Board may establish, if:
(1) The existing subordinate mortgage
was originated on or before January 1,
2008;
(2) The amount of the unpaid
principal and interest on such existing
subordinate mortgage on the date of
origination of the Program mortgage is at
least $2,500; and
(3) Each person holding such existing
subordinate mortgage agrees, in
connection with the origination of the
Program mortgage, to fully release:
(i) The mortgagor(s) from any
indebtedness under the existing
subordinate mortgage; and
(ii) The holder’s mortgage lien on the
property.
(d) Shared appreciation interest of
subordinate mortgage holders.
(1) In general. The eligible holder(s) of
an existing subordinate mortgage on a
property securing a Program mortgage
shall be eligible to receive, subject to
paragraph (c)(3) of this section, an
interest in FHA’s interest in the
appreciation in the value of such
property up to the amount set forth in
the Appendix to this part.
(2) Form. The interest of an eligible
holder of an existing subordinate
mortgage under paragraph (d) of this
section is evidenced in a shared
appreciation certificate or other
documentation to be issued by, or on
behalf of, HUD.
(3) Multiple subordinate liens. If there
is more than one eligible existing
subordinate mortgage on a property
securing a Program mortgage, the
interests of such eligible existing
subordinate mortgages under paragraph
(d)(1) of this section shall have priority
among each other in the same order of
priority that existed among the existing
subordinate mortgages on the date of
origination of the Program mortgage.
(4) Distribution of appreciation
interest to subordinate mortgage
holders. Upon the sale or disposition of
a property securing a Program mortgage
other than sale or disposition related to
a default, any proceeds due to FHA as
a result of the appreciation in value of
the property (as calculated in
accordance with paragraph (a) of this
section) shall be distributed:
(i) First to the holders of any shared
appreciation certificate or other
documentation issued by HUD with
respect to the property, if any, in
accordance with paragraphs (d)(1),
(d)(2), and (d)(3) of this section; and
(ii) The remaining amounts, if any,
will be retained by FHA.
§ 4001.122
Fees and closing costs.
(a) The holder or servicer of the
existing senior and subordinate
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
mortgages shall either forgive or waive
all prepayment penalties and
delinquency and default fees.
(b) Allowable closing costs incurred
in connection with the refinancing and
insurance of a mortgage under the
Program can be paid from the following
sources:
(1) The mortgagor’s assets;
(2) The mortgagee holding or
servicing the existing senior and
subordinate mortgage or the mortgagee
originating the Program mortgage;
(3) Premium pricing by the mortgagee
providing the Program mortgage;
(4) Financed as part of the Program
mortgage provided that the mortgage
amount is adjusted accordingly, and the
loan-to-value ratio does not exceed 90
percent (including the up-front
premium required under
§ 4001.203(a)(1));
(5) A Federal, state, county or parish,
or municipal program; or
(6) Such other sources as the Board
may permit.
Subpart C—Rights and Obligations
Under the Contract of Insurance
§ 4001.201
Cross-reference.
(a) All of the provisions of 24 CFR
part 203, subpart B, covering mortgages
insured under section 203 of the Act
shall apply to mortgages insured under
section 257 of the Act, except the
following sections: 203.256 Insurance of
open-end advances; 203.259a Scope;
203.260 Amount of insurance premium;
203.261 Calculation of periodic MIP
(periodic MIP); 203.270 Open-end
insurance charges; 203.280 One-time of
Up-front MIP; 203.281 Calculation of
one-time MIP; 203.283 Refund of onetime MIP; 203.284 Calculation of upfront and annual MIP on or after July 1,
1991; 203.285 Fifteen year mortgages:
calculation of up-front and annual MIP
on or after December 26, 1992; 203.415–
203.417 Certificate of Claim; 203.420–
203.427 Mutual Mortgage Insurance
Fund and Distributive Shares; 203.436
Claim procedures—graduated payment
mortgages; 203.438 Mortgages on Indian
land insured pursuant to section 248 of
the National Housing Act; 203.439
Mortgages on Hawaiian home lands
insured pursuant to section 247 of the
National Housing Act; 203.439a
Mortgages on property in Allegheny
Reservation of Seneca Nation of Indians
authorized by section 203(q) of the
National Housing Act; and 203.440–
203.495 Rehabilitation Loans.
(b) For the purposes of this subpart,
all references in 24 CFR part 203,
subpart B, to section 203 of the Act shall
be construed to refer to section 257 of
the Act. Any references in 24 CFR part
E:\FR\FM\06OCR3.SGM
06OCR3
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
203, subpart B, to the ‘‘Mutual Mortgage
Insurance Fund’’ shall be deemed to be
to the Home Ownership Preservation
Entity Fund, and any references to ‘‘the
Commissioner’’ shall be deemed to be to
the Board or the Commissioner (as the
context may require).
(c) If there is any conflict in the
application of any requirement of 24
CFR part 203, subpart B, to this part
4001, the provisions of part 4001 shall
control.
§ 4001.203 Calculation of upfront and
annual mortgage insurance premiums for
Program mortgages.
(a) Applicable premiums. Any
mortgage presented for endorsement
under section 257 on or after October 1,
2008, and prior to September 30, 2011,
shall be subject to the following
requirements:
(1) Upfront premium. FHA shall
establish and collect a single premium
payment equal to 3 percent of the
amount of the original insured principal
obligation of the Program mortgage.
(2) Annual premium. In addition to
the premium under paragraph (a)(1) of
this section, FHA shall establish and
collect an annual premium payment in
an amount equal to 1.5 percent of the
amount of the remaining insured
principal balance of the Program
mortgage.
(b) Proceeds for payment of the
upfront premium. The up-front
premium shall be paid with proceeds
from the Program mortgage through a
reduction of the amount of indebtedness
that existed on the eligible mortgage
prior to its being refinanced.
Subpart D—Servicing Responsibilities
mstockstill on PROD1PC66 with RULES3
§ 4001.301
Cross-reference.
(a) All of the provisions of 24 CFR
part 203, subpart C, covering mortgages
insured under section 203 of the Act
shall apply to mortgages insured under
section 257 of the Act, except as follows:
203.664 Processing defaulted mortgages
on property located on Indian land;
203.665 Processing defaulted mortgages
on property located on Hawaiian home
lands; 203.666 Processing defaulted
mortgages on property in Allegany
Reservation of Seneca Nation of Indians;
and 203–670–203.681 Occupied
Conveyance.
(b) For the purposes of this subpart,
all references in 24 CFR part 203,
subpart C, to section 203 of the Act shall
be construed to refer to section 257 of
the Act. Any references in 24 CFR part
203, subpart C, to the ‘‘Mutual Mortgage
Insurance Fund’’ shall be deemed to be
to the Home Ownership Preservation
Entity Fund, and any references to ‘‘the
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
Commissioner’’ shall be deemed to be to
the Board or the Commissioner (as the
context may require).
(c) If there is any conflict in the
application of any requirement of 24
CFR part 203, subpart C, to this part
4001, the provisions of part 4001 shall
control.
§ 4001.303 Prohibition on subordinate
liens during first five years.
(a) Prohibition on subordinate liens
during first five years. Except as
provided in paragraph (b) of this
section, a mortgagor shall not, during
the first 5 years of the term of the
mortgagor’s Program mortgage, incur
any debt, take any action, or fail to take
any action that would have the direct
result of causing a lien to be placed on
the property securing the Program
mortgage if such lien would be
subordinate to the Program mortgage.
(b) Property preservation exception.
Paragraph (a) of this section shall not
prevent a mortgagor on the Program
mortgage from incurring new mortgage
debt secured by a lien on the property
securing the Program mortgage that is
subordinate to the Program mortgage if:
(1) The proceeds of the new mortgage
debt are necessary to ensure the
maintenance of property standards,
including health and safety standards;
(2) Repair or remediation of the
condition would preserve or increase
the property’s value;
(3) The cost of the proposed repair or
remediation is reasonable for the
geographic market area;
(4) The results of the repair or
remediation are not primarily cosmetic;
(5) The repair or remediation does not
represent routine maintenance;
(6) The new mortgage debt is closedend credit, as defined in § 226.2 of the
Federal Reserve Board’s Regulation Z
(12 CFR 226.2); and
(7) The sum of the unpaid principal
balance and accrued and unpaid interest
on the Program mortgage and the
original principal balance of the new
mortgage debt:
(i) Does not exceed 95 percent of the
estimated appraised value of the
property securing the Program mortgage
after completion of the proposed repair
or remediation; and
(ii) Is less than:
(A) The estimated appraised value of
the property securing the Program
mortgage after completion of the
proposed repair or remediation; less
(B) FHA’s proportionate share of the
initial equity created upon origination
of the Program mortgage as determined
pursuant to the schedule set forth in
section 257(k)(1) of the Act as if a sale
of the property had occurred on the date
of origination of the new mortgage debt.
PO 00000
Frm 00009
Fmt 4701
Sfmt 4700
58425
Subpart E—Enforcement
Mortgagor False Information
§ 4001.401 Notice of false information from
mortgagor-procedure.
(a) If FHA finds that the mortgagor has
made a false certification or provided
false information via any means,
including but not limited to false
documentation, FHA shall inform the
mortgagor, in writing or any other
acceptable format, of such fact.
(b) The notice shall be sent to the
mortgagor’s last known address by both
certified and ordinary mail. The notice
shall state with specificity the
misrepresentation or false statement
made by the mortgagor. The notice shall
include a request for repayment of the
Direct Financial Benefit that the
mortgagor is deemed to have received,
as determined by FHA, by the
refinancing of the eligible mortgage and
subordinate mortgages. This does not
preclude HUD or the United States from
bringing any other action that they may
be authorized to bring.
(c) The mortgagor may request a
hearing before a Hearing Officer. The
hearing will be conducted in accordance
with the provisions of 24 CFR part 26,
subpart A, except as modified by this
section. Requests for a hearing must be
made within 45 days from the date of
the false information notice.
Appraiser Independence
§ 4001.403 Prohibitions on interested
parties in insured mortgage transaction.
(a) A mortgage lender, mortgage
broker, mortgage banker, real estate
broker, appraisal management company
or employee thereof, and any person
with an interest in a real estate
transaction involving an appraisal
conducted as part of the process for
insuring a mortgage under section 257
of the Act shall not improperly
influence or attempt to improperly
influence through any means, including
but not limited to coercion, extortion,
collusion, compensation, instruction,
inducement, intimidation, nonpayment
for services rendered, or bribery, the
development, reporting, result or review
of a real estate appraisal sought in
connection with the origination,
processing and closing of the mortgage
for insurance.
(b) HUD may, pursuant to its
authority under section 536(a) of the
Act, bring an action to impose a civil
money penalty for a violation of
paragraph (a) of this section.
(c) The authority to bring a civil
money penalty under this section shall
not preclude HUD from bringing any
other action that HUD may be
E:\FR\FM\06OCR3.SGM
06OCR3
58426
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations
authorized to bring for a violation of
paragraph (a) of this section.
Mortgagees
§ 4001.405
Mortgagees.
mstockstill on PROD1PC66 with RULES3
(a) FHA is authorized by the Board to
engage in monitoring activities to ensure
mortgagee compliance with the
requirements of this Program. The
Mortgagee Review Board at HUD is
authorized by the Board to impose
sanctions and civil money penalties
against mortgagees that violate program
requirements under this part. The
authority of the Mortgagee Review
Board to impose sanctions and civil
penalties shall not preclude HUD from
bringing any other action that HUD may
be authorized to bring.
(b) Nonpayment of mortgage
insurance claims for reasons established
in § 4001.16 shall not preclude the
Mortgagee Review Board or HUD from
bringing any action against the
mortgagee that the Mortgagee Review
Board or HUD are authorized to bring.
VerDate Aug<31>2005
18:17 Oct 03, 2008
Jkt 217001
(c) The mortgagee may request a
hearing before a Hearing Officer. The
hearing will be conducted in accordance
with the provisions of 24 CFR part 26,
subpart A, except as modified by this
section. Requests for a hearing must be
made within 45 days from the date of
the false information notice.
Appendix A to Part 4001—Calculation
of Future Appreciation Payment
Subordinate lien holder’s
CLTV
Percent of unpaid principal
and interest
that lien holder
is eligible to
receive
Cumulative CLTV >135% .....
PO 00000
9%
Subordinate lien holder’s
CLTV
Cumulative CLTV ≤135% .....
Fmt 4701
Sfmt 4700
12%
Note: Appreciation payment to a subordinate lien holder will depend on actual appreciation at the time of sale of the property and
will be limited by the amount of future appreciation HUD receives. Payment will be made
according to the subordinate lien holder’s position of priority in relation to the property at the
time the H4H mortgage is originated, and will
be based upon principal and interest on the
date of origination of the Program mortgage,
calculated at the pre-default contract rate of
interest.
Dated at Washington, DC, this 30th day of
September, 2008.
By order of the Board of Directors of the
HOPE for Homeowners Program.
Margaret E. Burns,
Executive Director of the Board.
[FR Doc. E8–23612 Filed 10–3–08; 8:45 am]
BILLING CODE 4210–AA–P
Frm 00010
Percent of unpaid principal
and interest
that lien holder
is eligible to
receive
E:\FR\FM\06OCR3.SGM
06OCR3
Agencies
[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Rules and Regulations]
[Pages 58418-58426]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23612]
[[Page 58417]]
-----------------------------------------------------------------------
Part VI
Board of Directors of the HOPE for Homeowners Program
-----------------------------------------------------------------------
24 CFR Part 4001
HOPE for Homeowners Program: Program Regulations; Final Rule
Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules
and Regulations
[[Page 58418]]
-----------------------------------------------------------------------
BOARD OF DIRECTORS OF THE HOPE FOR HOMEOWNERS PROGRAM
24 CFR Part 4001
[Docket No. B-2009-F-01]
RIN 2580-AA00
HOPE for Homeowners Program: Program Regulations
AGENCY: Board of Directors of the HOPE for Homeowners Program.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule sets forth the core requirements for the HOPE
for Homeowners Program that have been established by the Board of
Directors (Board) of the HOPE for Homeowners Program (Program). A new
section 257 of the National Housing Act (NHA) provides the authority
for this Program and oversight requirements to be performed by the
Board. Specifically, section 257(c)(1) of the NHA requires the Board to
prescribe such regulations as may be necessary or appropriate to
implement the Program. The Board has determined that the regulations
set forth in this rule are necessary and appropriate for the
implementation and effective administration of the Program.
DATES: Effective Date: October 6, 2008.
FOR FURTHER INFORMATION CONTACT: Emmanuel Yeow, Secretary of the Board
of Directors of the HOPE for Homeowners Program, Department of Housing
and Urban Development, 451 7th Street, SW., Room 9110, Washington, DC
20410-8000, telephone 202-708-3600 (this is not a toll-free number).
Persons with hearing- or speech-impairments may access this number
through TTY by calling the toll-free Federal Information Relay Service
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The HOPE for Homeowners Act of 2008, located in Title IV of
division A of the Housing and Economic Recovery Act of 2008 (HERA),
(Pub. L. 110-289, 122 Stat. 2654, approved July 30, 2008), amended
Title II of the NHA to add a new section 257. New section 257 (12
U.S.C. 1701z-22) establishes within the Federal Housing Administration
(FHA), the Program, a temporary FHA program, that offers homeowners and
existing mortgage loan holders (or servicers acting on their behalf)
insurance on the refinancing of loans for distressed mortgagors to
support long term sustainable homeownership, including among other
things, allowing homeowners to avoid foreclosure. Section 257 of the
NHA authorizes the Department of Housing and Urban Development (HUD)
acting through the FHA to insure such refinanced eligible mortgages
commencing no earlier than October 1, 2008, and such authority expires
September 30, 2011.
Under the Program, new mortgages are offered by FHA-approved
mortgagees to mortgagors who are at risk of losing their homes to
foreclosure. The new FHA-insured mortgage refinances the borrower's
existing mortgage at a significant write-down. Eligible borrowers must
be unable to afford their existing mortgage payments, must occupy the
residence that is the security for the refinanced mortgage as their
primary residence, and may not have any present ownership interest in
another residence. Investors and investor properties are not eligible
for the FHA-insured refinanced mortgages. Under the Program,
participating mortgagors share their new equity and future appreciation
with FHA. Additionally, participation in this Program is voluntary. No
mortgagees, servicers, or investors are compelled to participate.
Section 257 of the NHA prohibits the new mortgage loan insured by
FHA from exceeding 90 percent of the appraised value of the property
that is security for the mortgage, or 132 percent of the dollar amount
limitation in effect for 2007 under section 305(a)(2) of the Federal
Home Loan Mortgage Corporation Act (12 U.S.C. 1454(a)(2)) for a
property of applicable size. In addition, section 257 also provides
that the term of the FHA-insured refinanced mortgage shall have a
maturity of not less than 30 years, and must bear a single rate of
interest that is fixed for the entire term of the mortgage. Section 257
directs that a mortgagor participating in the Program may not grant a
new subordinate lien on the mortgaged property during the first 5 years
of the term of the mortgage insured under the Program, except as the
Board may determine is necessary to ensure the maintenance of property
standards, and subject to the requirements that any new outstanding
liens (1) do not reduce the value of FHA's equity in the mortgagor's
home; and (2) when combined with the mortgagor's existing mortgage
indebtedness, do not exceed 95 percent of the home's appraised value at
the time of the new subordinate lien.
The fundamental principle behind the HOPE for Homeowners Act and
this Program is that providing new equity for distressed homeowners may
be an effective way to help homeowners avoid foreclosures.
This Final Rule
Section 257(c)(1) of the NHA requires the Board to establish
requirements and standards for the Program, and prescribe such
regulations and provide such guidance as may be necessary or
appropriate to implement such requirements and standards.\1\ In
addition to this broad direction to establish requirements and
standards for the Program, section 257 also outlines specific areas for
which the Board is charged with establishing standards and policies for
the Program.
---------------------------------------------------------------------------
\1\ The Board is composed of the Secretary of HUD, the Secretary
of Treasury, the Chairman of the Board of Governors of the Federal
Reserve System, and the Chairperson of the Board of Directors of the
Federal Deposit Insurance Corporation, or their respective
designees. Section 257(t) of the NHA also provides that the Board
may ``prescribe, amend, and repeal such bylaws as may be necessary
for carrying out the functions of the Board.'' Consistent with this
provision, the Board adopted bylaws regarding its organization,
staffing, and operational procedures. These bylaws were published in
the Federal Register on September 4, 2008 (73 FR 51621) and provide
that the Board's principal place of business is 451 7th Street, SW.,
Washington, DC 20410-0500.
---------------------------------------------------------------------------
This final rule provides the core requirements that the Board has
determined are necessary and appropriate for the implementation and
effective administration of the Program. Consistent with section 257 of
the NHA, however, the Board may establish standards and policies
through means other than codified regulations. More detailed provisions
implementing these core requirements may be issued by the Board or FHA
through orders, a Federal Register notice, or through FHA mortgagee
letters (or similar administrative issuances). Because this is a
temporary program designed to address the immediate needs of homeowners
faced with the looming threat of foreclosure, the regulations adopted
by the Board are limited to the basic requirements of the Program. The
Board's objective is to adopt regulations that address the core
features of the Program, include necessary safety measures to avoid
fraud, waste, and abuse, and leave FHA with sufficient flexibility to
issue such guidance or processing requirements to make this a Program
that is able effectively to assist distressed homeowners avoid
foreclosure.
The regulations in this part present the purpose, the authority
delegated to FHA, and reference to FHA requirements that are applicable
to the Program.\2\ The regulations define the
[[Page 58419]]
key Program terms, and address the following Program areas:
underwriting standards, representations of the mortgagee whose
mortgagor will participate in the Program, mortgagor representations,
certain prohibitions imposed on FHA, FHA equity sharing with the
borrower, FHA appreciation sharing with the borrower, the prohibition
on subordinate liens during the first five years of the mortgagor's
Program mortgage, and applicable hearing procedures. The Board has
determined that regulations addressing these areas are necessary for
immediate implementation and long-term administration of the Program.
---------------------------------------------------------------------------
\2\ Section 4(b) of the Department of Housing and Urban
Development Act, 42 U.S.C. 3533(b), provides that the Federal
Housing Commissioner shall head a Federal Housing Administration
within HUD and shall have such duties and powers as may be
prescribed by the Secretary of HUD. The Secretary of HUD has
delegated to the FHA Commissioner the power and authority to carry
out all FHA mortgage insurance programs, including authority to
issue rules or regulations to carry out these programs.
---------------------------------------------------------------------------
The payment to FHA of the equity created in the property as a
result of the refinancing of the eligible mortgage is designed to avoid
any windfall to mortgagors that would arise as the result of the
refinancing. The same windfall avoidance concept also applies to the
requirement that property appreciation be shared between the homeowner
and FHA, the latter which is authorized to share any appreciation funds
with subordinate mortgage holders.
Section 257(e)(4)(B) requires that, at a minimum, the Board take
into consideration three factors in determining the amount of
appreciation a subordinate mortgage lien holder may receive. The first
factor is the status or relative priority of the subordinate liens.
This factor is addressed in the payout allocation set forth in the
rule. After sale or disposition of the property, HUD's 50 percent
appreciation interest is paid to prior mortgage lien holders in order
of the seniority in which their mortgage liens were held, to the extent
of HUD's share. Mortgage lien holders that were in 2nd position behind
the 1st mortgage will be paid first, then 3rd mortgage lien holders,
and when the claims of all prior lien holders have been satisfied, HUD
will retain the balance, if any.
The second factor is the outstanding principal and accrued but
unpaid interest of the existing senior mortgage and subordinate
mortgages. Since the total balances may not accurately reflect the
amount the mortgagee potentially could recover in a foreclosure, the
Board determined that these balances should be compared to the
appraised value of the property. Therefore, this factor is expressed in
the matrix described below as a cumulative combined loan-to-value
(CLTV).
The third factor is the extent to which the principal and accrued
interest owed on the mortgages that are senior to the particular
subordinate mortgage exceed the property's current appraised value.
This factor is taken into account as well in the matrix for
appreciation sharing because the amount a subordinate mortgage holder
may receive is based in part on the amount of principal and interest,
calculated at the pre-default contract rate, owed on those mortgages
that are more senior than the subordinate mortgage in question.
The Board gave very careful consideration to these three factors by
examining several models developed to implement this authority. The
initial models were very intricate and concern was raised that adopting
any of them would cause confusion in the mortgage marketplace, and
discourage subordinate mortgage holders and servicers from
participating in the program. The Board also considered the potential
for the existing senior mortgage holder, who will receive proceeds from
the refinancing that are likely to exceed the holder's potential
recovery in a foreclosure, to compensate a subordinate mortgage holder
to participate in the Program. The Board encourages lenders to pursue
such arrangements.
The following matrix provides the mechanism for determining the
future appreciation payment a subordinate lien holder is eligible to
receive. The Board considers a number of benefits to be present with
this approach. It provides an incentive to action by subordinate lien
holders; reduces administrative costs; is simple to calculate and easy
to understand; and voids competing appraisals.
Appreciation Sharing Payout Matrix
------------------------------------------------------------------------
Percent of
unpaid
principal and
Subordinate lien holder interest that
lien holder is
eligible to
receive*
------------------------------------------------------------------------
Cumulative CLTV >135%................................... 9%
Cumulative CLTV <=135%.................................. 12%
------------------------------------------------------------------------
* Appreciation payment to a subordinate lien holder will depend on
actual appreciation at the time of sale of the property and will be
limited by the amount of future appreciation HUD receives. Payment
will be made according to the subordinate lien holder's position of
priority in relation to the property at the time the Program mortgage
is originated, and will be based upon principal and interest on the
date of origination of the Program mortgage, calculated at the pre-
default contract rate of interest.
In establishing the maximum payments allowable to a subordinate
mortgage holder, the Board took into account information received from
market participants concerning the price received in the market
currently for delinquent subordinate mortgages. The Board expects that
the majority of subordinate mortgages offered to the Program will be
delinquent. The information provided by market participants indicates
that delinquent subordinate mortgages currently trade at substantially
below their par values, with market values within the ranges
established by the Board. Moreover, the information provided suggests
that subordinate mortgages that are even 30 days delinquent are very
likely to default and yield no recovery value to the holder of the
subordinate mortgage. Indeed, it is common practice for holders to
write-down the value of delinquent subordinate mortgages in portfolios
and in securitized pools to zero once the loans are 180 days past due.
In establishing the maximum amounts that a subordinate mortgage
holder may receive through receipt of an interest in the future
appreciation of the property, the Board also took into consideration
that subordinate mortgage holders receiving compensation in the form of
future appreciation rights, may require additional compensation to
participate in the Program to reflect the time value of money and
uncertainty about the extent and timing of property appreciation. A
certificate entitling the holder to receive a portion of future
appreciation on a property may be worth little or nothing if the
property experiences little or no appreciation. Moreover, appreciation
rights are exercised upon sale or other disposition of the property,
the timing of which is determined by the homeowner, rather than the
claim holder. As a result, if homeowners that have a mortgage insured
under the Program sell quickly, appreciation rights will have less
value. Since homeowners participating in the Program have an incentive
to sell the property to escape the shared appreciation requirement,
claim holders may discount the value of shared appreciation rights.
Accounting for these factors is inherently imprecise; nonetheless,
using models based in part on option-pricing concepts, the Board
believes that providing the holder of a subordinate mortgage the right
to receive a maximum of 9 to 12 percent of the unpaid principal and
interest on the subordinate mortgage out of the future appreciation, if
any, on the property should likely provide the
[[Page 58420]]
holder about the same risk-adjusted compensation as the holder would
receive from a current cash payment equal to the approximate current
market value of a delinquent subordinate lien of the same amount and
CLTV.
Findings and Certifications
Administrative Procedure Act
This final rule is being issued and will become effective without a
public comment period. Section 553(a) of the Administrative Procedure
Act (5 U.S.C. 551 et seq.) (APA) provides that advance notice and
public comment procedures do not apply to a matter relating to agency
management or personnel or to public property, loans, grants, benefits
or contracts (see 5 U.S.C. 553(a)). This final rule establishes
regulations for a new mortgage insurance program under the supervision
of the Board and is therefore exempt from notice and comment rulemaking
as provided in 5 U.S.C. 553(a).
This final rule will become effective upon publication in the
Federal Register. Section 553(d) of the APA provides that substantive
rules, such as this rule, shall be made effective not less than 30 days
after publication unless, among other things, an agency finds good
cause to provide an earlier effective date. Good cause exists for these
regulations to be immediately effective. This is a voluntary and
temporary program designed to address the immediate needs of homeowners
facing foreclosure, and HERA provides for this Program to begin October
1, 2008, in order that homeowners can take advantage of the mortgage
relief offered by this Program. The immediate effective date of this
rule is consistent with the statutory authority. The objective for
expedient action by the Board to have this Program commence at the
beginning of the new Federal fiscal year is motivated by the high level
of at-risk borrowers and weak conditions in the housing market.
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) reviewed this rule under
Executive Order 12866, Regulatory Planning and Review. OMB determined
that this rule is an economically significant regulatory action as
defined in section 3(f) of the Order. Accordingly, an economic analysis
was prepared for this rule.
This Program has the potential to have significant economic
benefits. The major unknown is participation. If 10,000 participate in
the Program, the aggregate net benefit of the Program may exceed $100M.
It is possible that there will be more participants than 10,000, or
less, in which case the net benefits increase or decrease, as the case
may be. There are other factors important in determining the aggregate
impact on the economy. The net benefit to the lender was estimated to
be $10,000 but, as the economic analysis discusses, it may be higher. A
higher net benefit to the senior lien holder would increase the
expected benefit of preventing a foreclosure. There are also economic
benefits to the community from preventing foreclosure. HUD anticipates
that the net economic benefits will exceed the costs based on initial
analysis.
The docket file for this rule, which includes the economic
analysis, is available for public inspection in the Regulations
Division, Office of General Counsel, Department of Housing and Urban
Development, 451 7th Street, SW., Room 10276, Washington, DC 20410-
0500. Due to security measures at the HUD Headquarters building, an
advance appointment to review the public comments must be scheduled by
calling the Regulations Division at 202-402-3055 (this is not a toll-
free number). Individuals with speech or hearing impairments may access
this number via TTY by calling the Federal Information Relay Service at
(800) 877-8339.
Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule does not have federalism
implications and does not impose substantial direct compliance costs on
state and local governments nor preempts state law within the meaning
of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments and the private sector. This rule will not impose
any federal mandates on any state, local, or tribal governments or the
private sector within the meaning of UMRA.
Congressional Review Act
OMB has determined that this rule constitutes a ``major rule'' as
defined in the Congressional Review Act (CRA) (5 U.S.C. 801 et seq.).
Generally, a major rule under the CRA has a 60-day delayed effective
date and is required to be submitted to Congress in accordance with the
requirements of the CRA. Section 808 of the CRA allows a rule to become
effective sooner than otherwise provided by the CRA, if the agency, for
good cause, finds that notice and public procedure are impracticable,
unnecessary, or contrary to the public interest. This finding and a
brief statement of the reasons for the finding must be incorporated in
the rule. (See 5 U.S.C. 808(2)). As stated in this preamble under the
section that addresses APA requirements, this rule is exempt from the
notice and comment procedures of the APA. As also discussed in
connection with the APA requirements, this Program is a voluntary and
temporary measure designed to prevent eligible borrowers whose
mortgages are at risk of foreclosure from losing their homes. Some of
these borrowers are facing foreclosure now or may in the very near
future, making the need for implementation of the Program immediate. A
60-day delay in the effective date of this rule would therefore be
contrary to the public interest. Thus, good cause exists to make this
rule effective as close as possible to October 1, 2008, which is the
date on which the HERA provides for the Program to begin. The Board
will submit this rule and other required information to Congress as
required by the CRA.
List of Subjects in 24 CFR Part 4001
Administrative procedures, Practice and procedure, Mortgage
insurance, Reporting and recordkeeping requirements.
0
For the reasons set forth in the preamble, the Board of Directors of
the Hope for Homeowners Program establishes a new Chapter XXIV
consisting of part 4001 in Title 24 of the Code of Federal Regulations
to read as follows:
CHAPTER XXIV--BOARD OF DIRECTORS OF THE HOPE FOR HOMEOWNERS PROGRAM
PART 4001--HOPE FOR HOMEOWNERS PROGRAM
Subpart A--HOPE for Homeowners Program--General Requirements
Sec
4001.01 Purpose of program.
4001.03 Requirements and delegated authority.
4001.05 Approval of mortgagees.
4001.07 Definitions.
[[Page 58421]]
Subpart B--Eligibility Requirements and Underwriting Procedures
4001.102 Cross-reference.
4001.104 Eligible mortgages.
4001.106 Eligible mortgagors.
4001.108 Eligible properties.
4001.110 Underwriting.
4001.112 Income verification.
4001.114 Appraisal.
4001.116 Representations and prohibitions.
4001.118 Equity sharing.
4001.120 Appreciation sharing.
4001.122 Fees and closing costs.
Subpart C--Rights and Obligations under the Contract of Insurance
4001.201 Cross-reference.
4001.203 Calculation of upfront and annual mortgage insurance
premiums for Program mortgages.
Subpart D--Servicing responsibilities
4001.301 Cross-reference.
4001.303 Prohibition on subordinate liens during first five years.
Subpart E--Enforcement
Mortgagor False Information
4001.401 Notice of false information from mortgagor-procedure.
Appraiser Independence
4001.403 Prohibitions on interested parties in insured mortgage
transaction.
Mortgagees
4001.405 Mortgagees.
Appendix A to Part 4001--Calculation of Future Appreciation Payment.
Authority: 12 U.S.C. 1701z-22.
Subpart A--HOPE for Homeowners Program--General Requirements
Sec. 4001.01 Purpose of program.
The HOPE for Homeowners Program is a temporary program authorized
by section 257 of the National Housing Act, established within the
Federal Housing Administration (FHA) of the Department of Housing and
Urban Development (HUD) that offers homeowners and existing loan
holders (or servicers acting on their behalf) FHA insurance on
refinanced loans for distressed borrowers to support long-term
sustainable homeownership by, among other things, allowing homeowners
to avoid foreclosure. The HOPE for Homeowners Program is administered
by HUD through FHA.
Sec. 4001.03 Requirements and delegated authority.
(a) Core requirements. This subpart establishes the core
requirements for the HOPE for Homeowners Program that have been adopted
by the Board of Directors (Board) for the HOPE for Homeowners Program
(Program). In addition to the core requirements, codified in this
subpart, the Board of Directors may adopt and issue additional
requirements, standards and policies through non-codified regulations,
including through order, Federal Register notice, or other statement,
such as a mortgagee letter, to be issued and implemented by FHA.
(b) Basic Program parameters. (1) FHA is authorized to insure
eligible refinanced mortgages under the Program commencing no earlier
than October 1, 2008. The authority to insure additional mortgages
under the Program expires September 30, 2011.
(2) Under this Program, an eligible mortgagor may obtain a
refinancing of his or her existing mortgage(s) with a new mortgage loan
insured by FHA, subject to conditions and restrictions specified in
section 257 of the National Housing Act and requirements established by
the Board.
(c) Delegated authority. HUD is statutorily charged with
administering, through FHA, the Program. In carrying out the Program
requirements established by the Board, FHA is directed to issue such
interim guidance and mortgagee letters as FHA determines necessary or
appropriate, within the parameters of the requirements, standards and
policies adopted by the Board. In addition to FHA's statutory charge,
the Board of Directors authorizes FHA to address unique or case-by-case
situations as may be encountered by FHA in carrying out the Program,
and to take such action as may be necessary to implement the Board's
requirements. This delegated implementing authority includes, but is
not limited to, specifying application forms, mortgage application
procedures, certifications or other assurances, and other information
collection requirements, subject to such rules, standards and policies
as the Board may adopt.
(d) Other applicable requirements. Except as may be otherwise
provided by the Board, the provisions and requirements in the FHA
regulations in 24 CFR part 203, which are generally applicable to all
FHA-insured single family mortgage insurance programs, also apply with
respect to the insurance of a refinanced eligible mortgage under the
Program.
Sec. 4001.05 Approval of mortgagees.
(a) Eligibility. In order for a mortgage to be eligible for
insurance under this part, the mortgagee originating the mortgage loan
and seeking mortgage insurance under this part shall have been approved
by the Secretary pursuant to 24 CFR part 202.
(b) Mortgagee whose loan is to be refinanced. A mortgagee holding
or servicing an eligible mortgage to be refinanced and insured under
section 257 of the National Housing Act is not required to be an
approved mortgagee as required in paragraph (a) of this section, unless
it seeks to be the originator of the refinanced mortgage to be insured
by FHA.
Sec. 4001.07 Definitions.
As used in this part and in the Program, the following definitions
apply.
Act means the National Housing Act (12 U.S.C. 1701 et seq. ).
Allowable closing costs mean charges, fees and discounts that the
mortgagee may collect from the mortgagor as provided in 24 CFR
203.27(a).
Board means the Board of Directors for the HOPE for Homeowners
Program, which is comprised of the Secretary of HUD, the Secretary of
the Treasury, the Chairman of the Board of Governors of the Federal
Reserve System (Federal Reserve Board), and the Chairperson of the
Board of Directors of the Federal Deposit Insurance Corporation or the
designees of each such individual.
Capital improvements means a repair, renovation, or addition to a
property that significantly enhances the value of the property, but
does not include expenses for interior decor, landscape maintenance, or
normal maintenance or replacement expenses.
Contract of insurance means the agreement by which FHA provides
mortgage insurance to a mortgagee.
Default and delinquency fees means late charges contained in a
mortgage/security instrument for the late or non-receipt of payments
from mortgagors after the date upon which payment is due, including
charges imposed by the mortgagee for the return of payments on the
mortgage due to non-sufficient funds.
Direct financial benefit, as used in section 257(e)(1)(A)(ii)(II)
of the Act, consists of the greater of two factors:
(1) The amount of initial equity the mortgagor has in the property
at the closing for the Program mortgage as determined under Sec.
4001.118; and
(2) The total amount that the existing senior mortgage and all
existing subordinate mortgages on the property have been written down.
Disposition means any transaction that results in whole or partial
transfer of title of a property other than--
(1) A sale of the property; or
(2) Any transaction or transfer specified in 12 U.S.C. Sec. 1701j-
3(d)(1) through (8).
Eligible Mortgage means a mortgage as defined in Sec. 4001.104.
Existing senior mortgage means an eligible mortgage that has
superior
[[Page 58422]]
priority and is being refinanced by a mortgage insured under section
257 of the Act.
Existing subordinate mortgage means a mortgage that is subordinate
in priority to an eligible mortgage which is being refinanced by a
mortgage insured under section 257 of the Act.
FHA means the Federal Housing Administration.
HOPE for Homeowners Program (or Program) means the program
established under section 257 of the Act.
HUD means the Department of Housing and Urban Development.
Intentionally defaulted for purposes of section 257(e)(1)(A) of the
Act means the mortgagor:
(1) Knowingly failed to make payment on the mortgage or debt;
(2) Had available funds at the time payment on the mortgage or debt
was due that could pay the mortgage or debt without undue hardship; and
(3) The debt was not subject to a bona fide dispute.
Mortgage has the same meaning as provided in 24 CFR 203.17(a)(1).
Mortgagee has the same meaning as provided in 24 CFR 203.251(f).
Mortgagor has the same meaning as provided in 24 CFR 203.251(e).
Premium pricing means the price for the sale of a mortgage loan
with an above market rate of interest.
Prepayment penalties mean such amounts as defined in 12 CFR
226.32(d)(6) of the Federal Reserve Board's Regulation Z (Truth in
Lending).
Primary residence means the dwelling where the mortgagor maintains
his or her permanent place of abode and typically spends the majority
of the calendar year. A mortgagor can only have one primary residence.
Program mortgage means the mortgage into which the existing senior
mortgage is refinanced.
Secretary means the Secretary of Housing and Urban Development.
Total monthly mortgage payment means the sum of:
(1) Principal and interest, as determined on a fully indexed and
fully amortized basis; and
(2) Escrowed amounts. (i) The monthly required amount collected by
or on behalf of the mortgagee for real estate taxes, premiums for
required hazard and mortgage insurance, homeowners' association dues,
ground rent, special assessments, water and sewer charges and other
similar charges required by the note or security instrument; or
(ii) For mortgages not subject to escrow deposits, \1/12\ of the
estimated annual costs for items listed in paragraph (2)(i) of this
definition.
Subpart B--Eligibility Requirements and Underwriting Procedures
Sec. 4001.102 Cross-reference.
(a) All of the provisions of 24 CFR part 203, subpart A, concerning
eligibility requirements of mortgages covering one-family dwellings
under section 203 of the National Housing Act (12 U.S.C. 1709) apply to
mortgages on one-family dwellings to be insured under section 257 of
the National Housing Act (12 U.S.C. 1701z-22), except the following
provisions: 203.7 Commitment Process; 203.10 Informed consumer choice
for prospective FHA mortgagors; 203.12 Mortgage insurance on proposed
or new subdivisions; 203.14 Builder's warranty; 203.16 Certificate and
contract regarding use of dwelling for transient or hotel purposes;
203.18 Maximum mortgage amounts; 203.18a Solar-energy system; 203.18b
Increased mortgage amount; 203.18c One-time or up-front MIP excluded
from limitations on maximum mortgage amounts; 203.18d Minimum principal
loan amount; 203.19 Mortgagor's minimum investment; 203.20 Agreed
interest rate; 203.29 Eligible mortgage in Alaska, Guam, Hawaii or the
Virgin Islands; 203.32 Mortgage lien; 203.37a Sale of property; 203.42
Rental properties; 203.43 Eligibility of miscellaneous types of
mortgages; 203.43a Eligibility of mortgages covering housing in certain
neighborhoods; 203.43d Eligibility of mortgages in certain communities;
203.43e Eligibility of mortgages covering houses in federally impacted
areas; 203.43g Eligibility of mortgages in certain communities; 203.43h
Eligibility of mortgages on Indian land insured pursuant to section 248
of the National Housing Act; 203.43i Eligibility of mortgages on
Hawaiian Home Lands insured pursuant to section 247 of the National
Housing Act; 203.43j Eligibility of mortgages on Allegany Reservation
of Seneca Nation Indians; 203.44 Eligibility of advances; 203.45
Eligibility of graduated payment mortgages; 203.47 Eligibility of
growing equity mortgages; 203.49 Eligibility of adjustable rate
mortgages; 203.50 Eligibility of rehabilitation loans; 203.51
Applicability; and 203.200-203.209 Insured Ten-Year Protection Plans
(Plan).
(b) For the purposes of this subpart, all references in 24 CFR part
203, subpart A, to section 203 of the Act shall be construed to refer
to section 257 of the Act. Any references in 24 CFR part 203, subpart
A, to the ``Mutual Mortgage Insurance Fund'' shall be deemed to be to
the Home Ownership Preservation Entity Fund, and any references to
``the Commissioner'' shall be deemed to be to the Board or the
Commissioner (as the context may require).
(c) If there is any conflict in the application of any requirement
of 24 CFR part 203, subpart A, to this part the provisions of this part
shall control.
Sec. 4001.104 Eligible mortgages.
A mortgage eligible to be refinanced under section 257 of the Act
must:
(a) Have been originated on or before January 1, 2008;
(b) Be secured by a property owned and occupied by the mortgagor as
his or her primary residence, and be the only residence in which the
mortgagor has any present ownership interest; and
(c) Meet such other requirements as the Board may adopt.
Sec. 4001.106 Eligible mortgagors.
In order for a mortgagor to be eligible to refinance his or her
existing mortgages under section 257 of the Act, the mortgagor must:
(a) Have had, on March 1, 2008, a monthly total mortgage payment of
more than 31 percent of the mortgagor's monthly gross income;
(b) Not have an ownership interest in any other residential
property;
(c) Not have been convicted of fraud under federal or state law in
the past 10 years;
(d) Certify that the mortgagor has not intentionally defaulted on
any mortgage or debt and has not knowingly, or willfully and with
actual knowledge, furnished material information know to be false for
purposes of obtaining any Program mortgage; and
(e) Meet such other requirements as the Board may adopt.
Sec. 4001.108 Eligible properties.
(a) A mortgage may be insured under the Program only if the
property that is to be the security for the mortgage is a one-family
residence.
(b) The following property types are eligible to secure a mortgage
insured under the Program:
(1) Detached and semi-detached dwellings;
(2) A condominium unit;
(3) A cooperative unit; or
(4) A manufactured home that is permanently affixed to realty and
is treated as realty under applicable state law except state taxation
law.
Sec. 4001.110 Underwriting.
A mortgage may be insured under the Program only if the following
conditions are met:
[[Page 58423]]
(a) Debt-to-income thresholds. Except as provided in paragraph (c)
of this section:
(1) Payment-to-income. The total monthly mortgage payment of the
mortgagor under the Program mortgage does not exceed 31 percent of the
mortgagor's monthly gross income; and
(2) Debt-to-income. The sum of the total monthly mortgage payment
under the Program mortgage and all monthly recurring expenses of the
mortgagor does not exceed 43 percent of the mortgagor's monthly gross
income.
(b) Past credit performance. The mortgagor must have made at least
six full payments on the existing senior mortgage being refinanced
under the Program.
(c) Trial modifications. For any mortgagor who is unable to meet
the requirements of paragraph (a) of this section, a mortgage loan may
nevertheless be presented for insurance by FHA under the Program if:
(1) The mortgagor, using existing income, has made full and timely
mortgage payments on the existing senior mortgage pursuant to the terms
of the trial modification:
(i) For the three consecutive months before submission of the
application for the mortgage to be insured under the Program; and
(ii) In an amount that is at least 90 percent of the estimated
total monthly mortgage payment to be paid by the mortgagor on the
Program mortgage.
(2) The total monthly mortgage payment of the mortgagor under the
Program mortgage does not exceed 38 percent of the mortgagor's monthly
income; and
(3) The sum of the total monthly mortgage payment under the Program
mortgage and all monthly recurring expenses of the mortgagor does not
exceed 50 percent of the mortgagor's monthly gross income.
(d) Non-occupant co-borrowers. A mortgage loan may be insured by
the FHA under the Program, even if one of the mortgagors on the loan
(i.e. , a co-signer) does not reside at the residence securing the
loan, provided that the non-resident mortgagor relinquishes all
interests in the property that is to be security for the mortgage
before an application is submitted for FHA insurance under the Program.
(e) Amount of new mortgage payment. The mortgagor's total monthly
payment on the mortgage to be insured under the Program must not be
greater than the mortgagor's aggregate total monthly mortgage payment
under the mortgagor's existing senior mortgage and all existing
subordinate mortgages.
(f) Limit on origination fees. Mortgagees may charge and collect
from mortgagors allowable closing costs.
Sec. 4001.112 Income verification.
The mortgagee shall use FHA's procedures to verify the mortgagor's
income and shall comply with the following additional requirements:
(a) The mortgagee shall document and verify the income of the
mortgagor by obtaining a transcript of the borrower's Federal income
tax returns or a copy of the borrower's Federal income tax returns
obtained directly from the Internal Revenue Service for the most recent
two years; and
(b) The mortgagee shall document and verify the mortgagor's income
in any case in which the mortgagor has not filed a Federal income tax
return.
Sec. 4001.114 Appraisal.
(a) The property shall be appraised by an appraiser on the FHA
Appraiser Roster.
(b) An appraisal of a property to be security for a Program
mortgage shall be conducted in accordance with Uniform Standards of
Professional Appraisal Practice (USPAP) but dated no more than 90 days
from the date on which the mortgage transaction is closed, except as
otherwise provided by the Board.
(c) The mortgagee must inform the appraiser that copies of the
appraisal may be shared with holders and servicers of existing
subordinate mortgages.
Sec. 4001.116 Representations and prohibitions.
(a) Underwriting and appraisal standards. In order for the Program
mortgage to be eligible for insurance under the Program, the
underwriter and the mortgagee must provide certifications, in a format
approved by the FHA, that the mortgage is in compliance with the
underwriting and the appraisal standards set forth in this part, and
that it meets all requirements applicable to the Program. FHA may
require additional certifications by the mortgagee to ensure compliance
with such additional standards as the FHA deems necessary given the
specific mortgage transaction presented.
(b) Mortgagor's liability for repayment. (1) The mortgagor shall
provide a certification to FHA that the mortgagor has not:
(i) Intentionally defaulted on the mortgagor's existing
mortgage(s), or any other debt; or
(ii) Knowingly or willfully and with actual knowledge furnished
material information known to be false for the purpose of obtaining the
mortgagor's existing mortgage(s).
(2) The mortgagor shall provide any other certifications that FHA
may otherwise require.
(3) A mortgagor obligated under a Program mortgage shall agree in
writing, on a form approved by the Board, to be liable to pay to FHA
any Direct Financial Benefit achieved from the reduction of
indebtedness on the existing senior and subordinate mortgages that are
being refinanced under the Program if he or she makes a false statement
or other misrepresentation in the certifications and documentation
required for Program eligibility, including but not limited to the
certifications required under section 257(e)(1)(A)(i) of the Act.
(c) Mortgagee in violation of Program requirements. (1) If the
mortgagee holds a Program mortgage that it originated and/or
underwrote, and FHA finds that the mortgagee violated the Program
requirements, FHA is prohibited from paying FHA insurance benefits to
that mortgagee.
(2) If the mortgagee no longer holds the Program mortgage that it
originated and/or underwrote, FHA will pay the insurance claim to the
mortgagee presently holding the Program mortgage (if all other
requirements of the contract for mortgage insurance are met and the
present holder did not participate in the violation of Program
requirements) and shall seek indemnification from the non-holding
mortgagee.
(d) FHA insurance. A mortgage is eligible for insurance if the
mortgagee submits a complete case binder within 120 days from the date
of closing of the mortgage, or such other time as the Board may
prescribe. The binder shall include evidence acceptable to the Board
that the mortgage is current.
(e) Mortgagor failure to make first mortgage payment. FHA shall not
pay a mortgage insurance claim to any mortgagee if the first total
monthly mortgage payment is not made within the time frame established
in paragraph (d) of this section. The mortgagee shall not, directly or
indirectly, make all or a part of the first total monthly mortgage
payment on behalf of the mortgagor. The mortgagee is prohibited from
escrowing funds at closing for all or part of the first total monthly
mortgage payment.
Sec. 4001.118 Equity sharing.
(a) Initial Equity. For purposes of section 257(k)(1) of the Act,
the initial equity created as a direct result of the origination of a
Program mortgage on a property, as calculated by the Program mortgage
lender, shall equal:
(1) The appraised value of the property that was used at the time
of origination of the Program mortgage to
[[Page 58424]]
underwrite the mortgage and to determine compliance with the maximum
loan-to-value ratio at origination established by section 257(e)(2)(B)
of the Act; less
(2) The original principal amount of the Program mortgage on the
property.
(b) FHA's interest. Upon the sale or disposition of a property or
Program mortgage refinancing, FHA shall calculate and be entitled to
receive the portion of the initial equity (as defined by paragraph (a)
of this section) set forth in section 257(k)(1) of the Act, subject to
such standards and policies as the Board may establish.
Sec. 4001.120 Appreciation sharing.
(a) Calculation of appreciation. For purposes of section 257(k)(2)
of the Act, the amount of the appreciation in value of a property
securing a Program mortgage that occurs between the date the mortgage
was insured under section 257 of the Act and the date of any subsequent
sale or disposition of the property shall be equal to the following, as
such amounts of appreciation may be established to the satisfaction of
FHA:
(1) The gross proceeds from the sale or disposition of the property
(calculated at the pre-default rate of interest); less
(2) The amount of closing costs, as adopted by the Board, incurred
by the mortgagor(s) in connection with such sale or disposition, if
any; less
(3) Seventy-five percent, as may be modified by the Board, of the
actual expenditures for Capital Improvements made by the mortgagor(s)
after the date of origination of the Program mortgage; and less
(4) The appraised value of the property that was used at the time
of origination of the Program mortgage to underwrite that mortgage and
determine compliance with the maximum loan-to-value ratio at
origination established by section 257(e)(2)(B) of the Act.
(b) HUD's interest in appreciation. Upon sale or disposition of a
property securing a Program mortgage, FHA shall be entitled to receive
an amount equal to 50 percent of the appreciation in value of the
property calculated in accordance with paragraph (a) of this section.
(c) Eligibility of subordinate mortgage holders to receive a
portion of appreciation in value. The persons or entities that hold, on
the date of origination of a Program mortgage, an existing subordinate
mortgage on the property shall be eligible to receive a portion of
FHA's interest in the appreciation in value of the property, as
determined in accordance with the provisions of this section and such
additional standards and policies that the Board may establish, if:
(1) The existing subordinate mortgage was originated on or before
January 1, 2008;
(2) The amount of the unpaid principal and interest on such
existing subordinate mortgage on the date of origination of the Program
mortgage is at least $2,500; and
(3) Each person holding such existing subordinate mortgage agrees,
in connection with the origination of the Program mortgage, to fully
release:
(i) The mortgagor(s) from any indebtedness under the existing
subordinate mortgage; and
(ii) The holder's mortgage lien on the property.
(d) Shared appreciation interest of subordinate mortgage holders.
(1) In general. The eligible holder(s) of an existing subordinate
mortgage on a property securing a Program mortgage shall be eligible to
receive, subject to paragraph (c)(3) of this section, an interest in
FHA's interest in the appreciation in the value of such property up to
the amount set forth in the Appendix to this part.
(2) Form. The interest of an eligible holder of an existing
subordinate mortgage under paragraph (d) of this section is evidenced
in a shared appreciation certificate or other documentation to be
issued by, or on behalf of, HUD.
(3) Multiple subordinate liens. If there is more than one eligible
existing subordinate mortgage on a property securing a Program
mortgage, the interests of such eligible existing subordinate mortgages
under paragraph (d)(1) of this section shall have priority among each
other in the same order of priority that existed among the existing
subordinate mortgages on the date of origination of the Program
mortgage.
(4) Distribution of appreciation interest to subordinate mortgage
holders. Upon the sale or disposition of a property securing a Program
mortgage other than sale or disposition related to a default, any
proceeds due to FHA as a result of the appreciation in value of the
property (as calculated in accordance with paragraph (a) of this
section) shall be distributed:
(i) First to the holders of any shared appreciation certificate or
other documentation issued by HUD with respect to the property, if any,
in accordance with paragraphs (d)(1), (d)(2), and (d)(3) of this
section; and
(ii) The remaining amounts, if any, will be retained by FHA.
Sec. 4001.122 Fees and closing costs.
(a) The holder or servicer of the existing senior and subordinate
mortgages shall either forgive or waive all prepayment penalties and
delinquency and default fees.
(b) Allowable closing costs incurred in connection with the
refinancing and insurance of a mortgage under the Program can be paid
from the following sources:
(1) The mortgagor's assets;
(2) The mortgagee holding or servicing the existing senior and
subordinate mortgage or the mortgagee originating the Program mortgage;
(3) Premium pricing by the mortgagee providing the Program
mortgage;
(4) Financed as part of the Program mortgage provided that the
mortgage amount is adjusted accordingly, and the loan-to-value ratio
does not exceed 90 percent (including the up-front premium required
under Sec. 4001.203(a)(1));
(5) A Federal, state, county or parish, or municipal program; or
(6) Such other sources as the Board may permit.
Subpart C--Rights and Obligations Under the Contract of Insurance
Sec. 4001.201 Cross-reference.
(a) All of the provisions of 24 CFR part 203, subpart B, covering
mortgages insured under section 203 of the Act shall apply to mortgages
insured under section 257 of the Act, except the following sections:
203.256 Insurance of open-end advances; 203.259a Scope; 203.260 Amount
of insurance premium; 203.261 Calculation of periodic MIP (periodic
MIP); 203.270 Open-end insurance charges; 203.280 One-time of Up-front
MIP; 203.281 Calculation of one-time MIP; 203.283 Refund of one-time
MIP; 203.284 Calculation of up-front and annual MIP on or after July 1,
1991; 203.285 Fifteen year mortgages: calculation of up-front and
annual MIP on or after December 26, 1992; 203.415-203.417 Certificate
of Claim; 203.420-203.427 Mutual Mortgage Insurance Fund and
Distributive Shares; 203.436 Claim procedures--graduated payment
mortgages; 203.438 Mortgages on Indian land insured pursuant to section
248 of the National Housing Act; 203.439 Mortgages on Hawaiian home
lands insured pursuant to section 247 of the National Housing Act;
203.439a Mortgages on property in Allegheny Reservation of Seneca
Nation of Indians authorized by section 203(q) of the National Housing
Act; and 203.440-203.495 Rehabilitation Loans.
(b) For the purposes of this subpart, all references in 24 CFR part
203, subpart B, to section 203 of the Act shall be construed to refer
to section 257 of the Act. Any references in 24 CFR part
[[Page 58425]]
203, subpart B, to the ``Mutual Mortgage Insurance Fund'' shall be
deemed to be to the Home Ownership Preservation Entity Fund, and any
references to ``the Commissioner'' shall be deemed to be to the Board
or the Commissioner (as the context may require).
(c) If there is any conflict in the application of any requirement
of 24 CFR part 203, subpart B, to this part 4001, the provisions of
part 4001 shall control.
Sec. 4001.203 Calculation of upfront and annual mortgage insurance
premiums for Program mortgages.
(a) Applicable premiums. Any mortgage presented for endorsement
under section 257 on or after October 1, 2008, and prior to September
30, 2011, shall be subject to the following requirements:
(1) Upfront premium. FHA shall establish and collect a single
premium payment equal to 3 percent of the amount of the original
insured principal obligation of the Program mortgage.
(2) Annual premium. In addition to the premium under paragraph
(a)(1) of this section, FHA shall establish and collect an annual
premium payment in an amount equal to 1.5 percent of the amount of the
remaining insured principal balance of the Program mortgage.
(b) Proceeds for payment of the upfront premium. The up-front
premium shall be paid with proceeds from the Program mortgage through a
reduction of the amount of indebtedness that existed on the eligible
mortgage prior to its being refinanced.
Subpart D--Servicing Responsibilities
Sec. 4001.301 Cross-reference.
(a) All of the provisions of 24 CFR part 203, subpart C, covering
mortgages insured under section 203 of the Act shall apply to mortgages
insured under section 257 of the Act, except as follows: 203.664
Processing defaulted mortgages on property located on Indian land;
203.665 Processing defaulted mortgages on property located on Hawaiian
home lands; 203.666 Processing defaulted mortgages on property in
Allegany Reservation of Seneca Nation of Indians; and 203-670-203.681
Occupied Conveyance.
(b) For the purposes of this subpart, all references in 24 CFR part
203, subpart C, to section 203 of the Act shall be construed to refer
to section 257 of the Act. Any references in 24 CFR part 203, subpart
C, to the ``Mutual Mortgage Insurance Fund'' shall be deemed to be to
the Home Ownership Preservation Entity Fund, and any references to
``the Commissioner'' shall be deemed to be to the Board or the
Commissioner (as the context may require).
(c) If there is any conflict in the application of any requirement
of 24 CFR part 203, subpart C, to this part 4001, the provisions of
part 4001 shall control.
Sec. 4001.303 Prohibition on subordinate liens during first five
years.
(a) Prohibition on subordinate liens during first five years.
Except as provided in paragraph (b) of this section, a mortgagor shall
not, during the first 5 years of the term of the mortgagor's Program
mortgage, incur any debt, take any action, or fail to take any action
that would have the direct result of causing a lien to be placed on the
property securing the Program mortgage if such lien would be
subordinate to the Program mortgage.
(b) Property preservation exception. Paragraph (a) of this section
shall not prevent a mortgagor on the Program mortgage from incurring
new mortgage debt secured by a lien on the property securing the
Program mortgage that is subordinate to the Program mortgage if:
(1) The proceeds of the new mortgage debt are necessary to ensure
the maintenance of property standards, including health and safety
standards;
(2) Repair or remediation of the condition would preserve or
increase the property's value;
(3) The cost of the proposed repair or remediation is reasonable
for the geographic market area;
(4) The results of the repair or remediation are not primarily
cosmetic;
(5) The repair or remediation does not represent routine
maintenance;
(6) The new mortgage debt is closed-end credit, as defined in Sec.
226.2 of the Federal Reserve Board's Regulation Z (12 CFR 226.2); and
(7) The sum of the unpaid principal balance and accrued and unpaid
interest on the Program mortgage and the original principal balance of
the new mortgage debt:
(i) Does not exceed 95 percent of the estimated appraised value of
the property securing the Program mortgage after completion of the
proposed repair or remediation; and
(ii) Is less than:
(A) The estimated appraised value of the property securing the
Program mortgage after completion of the proposed repair or
remediation; less
(B) FHA's proportionate share of the initial equity created upon
origination of the Program mortgage as determined pursuant to the
schedule set forth in section 257(k)(1) of the Act as if a sale of the
property had occurred on the date of origination of the new mortgage
debt.
Subpart E--Enforcement
Mortgagor False Information
Sec. 4001.401 Notice of false information from mortgagor-procedure.
(a) If FHA finds that the mortgagor has made a false certification
or provided false information via any means, including but not limited
to false documentation, FHA shall inform the mortgagor, in writing or
any other acceptable format, of such fact.
(b) The notice shall be sent to the mortgagor's last known address
by both certified and ordinary mail. The notice shall state with
specificity the misrepresentation or false statement made by the
mortgagor. The notice shall include a request for repayment of the
Direct Financial Benefit that the mortgagor is deemed to have received,
as determined by FHA, by the refinancing of the eligible mortgage and
subordinate mortgages. This does not preclude HUD or the United States
from bringing any other action that they may be authorized to bring.
(c) The mortgagor may request a hearing before a Hearing Officer.
The hearing will be conducted in accordance with the provisions of 24
CFR part 26, subpart A, except as modified by this section. Requests
for a hearing must be made within 45 days from the date of the false
information notice.
Appraiser Independence
Sec. 4001.403 Prohibitions on interested parties in insured mortgage
transaction.
(a) A mortgage lender, mortgage broker, mortgage banker, real
estate broker, appraisal management company or employee thereof, and
any person with an interest in a real estate transaction involving an
appraisal conducted as part of the process for insuring a mortgage
under section 257 of the Act shall not improperly influence or attempt
to improperly influence through any means, including but not limited to
coercion, extortion, collusion, compensation, instruction, inducement,
intimidation, nonpayment for services rendered, or bribery, the
development, reporting, result or review of a real estate appraisal
sought in connection with the origination, processing and closing of
the mortgage for insurance.
(b) HUD may, pursuant to its authority under section 536(a) of the
Act, bring an action to impose a civil money penalty for a violation of
paragraph (a) of this section.
(c) The authority to bring a civil money penalty under this section
shall not preclude HUD from bringing any other action that HUD may be
[[Page 58426]]
authorized to bring for a violation of paragraph (a) of this section.
Mortgagees
Sec. 4001.405 Mortgagees.
(a) FHA is authorized by the Board to engage in monitoring
activities to ensure mortgagee compliance with the requirements of this
Program. The Mortgagee Review Board at HUD is authorized by the Board
to impose sanctions and civil money penalties against mortgagees that
violate program requirements under this part. The authority of the
Mortgagee Review Board to impose sanctions and civil penalties shall
not preclude HUD from bringing any other action that HUD may be
authorized to bring.
(b) Nonpayment of mortgage insurance claims for reasons established
in Sec. 4001.16 shall not preclude the Mortgagee Review Board or HUD
from bringing any action against the mortgagee that the Mortgagee
Review Board or HUD are authorized to bring.
(c) The mortgagee may request a hearing before a Hearing Officer.
The hearing will be conducted in accordance with the provisions of 24
CFR part 26, subpart A, except as modified by this section. Requests
for a hearing must be made within 45 days from the date of the false
information notice.
Appendix A to Part 4001--Calculation of Future Appreciation Payment
------------------------------------------------------------------------
Percent of
unpaid
principal and
Subordinate lien holder's CLTV interest that
lien holder is
eligible to
receive
------------------------------------------------------------------------
Cumulative CLTV >135%................................... 9%
Cumulative CLTV <=135%.................................. 12%
------------------------------------------------------------------------
Note: Appreciation payment to a subordinate lien holder will depend on
actual appreciation at the time of sale of the property and will be
limited by the amount of future appreciation HUD receives. Payment
will be made according to the subordinate lien holder's position of
priority in relation to the property at the time the H4H mortgage is
originated, and will be based upon principal and interest on the date
of origination of the Program mortgage, calculated at the pre-default
contract rate of interest.
Dated at Washington, DC, this 30th day of September, 2008.
By order of the Board of Directors of the HOPE for Homeowners
Program.
Margaret E. Burns,
Executive Director of the Board.
[FR Doc. E8-23612 Filed 10-3-08; 8:45 am]
BILLING CODE 4210-AA-P